Andhra HC (Pre-Telangana)
T. Ramachander Rao vs Union Of India And Others on 8 March, 2001
Equivalent citations: 2001(2)ALD634
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. In this wit petition which is in the nature of Public Interest Litigation, the petitioner who is a retired Superintending Engineer of the Government of Andhra Pradesh has prayed for the following reliefs:
"It is, therefore, prayed that this Hon'ble Court may be pleased to issue writ or direction more particularly one in the nature of writ of mandamus by calling for the records relating to the agreements entered by the erstwhile State of Hyderabad with regard to the sharing of Krishna, Godavari and Tungabhadra waters with that of erstwhile States of Andhra and Madras and Andhra Pradesh state with Maharashtra and Madhya Pradesh States together with the Bachawat awards relating to Godavari and Krishna rivers and declare the action of the respondents in not implementing the same as violative of Articles 14 and 21 of the Constitution of India and also violative of Section 108 of the State Reorganisation Act, 1956 and also violative of Directive Principles of State Policy i.e., Article 39(a), (b) and (c) and 48 of the Constitution of India and consequently direct the respondents 4 to 8 to rectify the imbalances in the irrigated area by executing the following projects on war footing basis by making available all the necessary funds;
I. to complete Jurala and Bheema projects utilising Krishna water to eradicate drought in Mahabubnagar district.
II. to commence Srisailam left Bank Canal on Krishna river through the tunnel work as originally contemplated to cater to the needs of agriculturists in Nalgonda district.
III. to complete the balance works in Sriramsagar project Stage-I and to commence Stage-11 on Godavari river to cater to the needs of agriculturists of Adilabad, Karimnagar, Warangal and Nalgonda districts, and pass such other order or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case".
2. The principal contention raised in the application is that the Telangana area of the State which is a backward area is being kept out of the developmental progress, as a result whereof, the poor areas are becoming poorer and poorer whereas all developmental activities have been concentrated in the rich areas, the people whereof are becoming richer and richer. The petitioner further contends that 75% of the population of Telangana area depend on agriculture and other works for their living and as no proper imgational facilities have been provided in the area, the people are suffering a lot. The petitioner has referred to the details of various projects taken up in the area in relation to rivers Godavari and Krishna viz., Sri Ramsagar, Srisailam Left Bank Canal, Pochampad, Jurala etc., which have not been completed so far. According to the petitioner, the non-implementation of various irrigational projects taken up in the area and lack of provision of sufficient irrigational facilities affected the agriculture in the area considerably and the living condilions of the people in particular. The petitioner has also given comparative statistical figures of both the regions in the State in relation to irrigated area/sown area prior to formation and after the formation of the State of Andhra Pradesh to show that there was discrimination between the two regions in the matter implementation of the irrigation projects and the required irrigation potentials were not created by the State in the area, as a result whereof, the irrigation content in Telangana area has not increased to cater to the needs of the farmers and there was neglect on the part of the State.
3. The previous agreements and arrangements entered into between the States viz., erstwhile Hyderabad State and erstwhile Andhra State and with other States at the time of formation of the State of Andhra Pradesh in relation to irrigation, power or multipurpose projects and sharing of Krishna and Godavari waters are required to be implemented by the respondents herein in view of Section 108 of the States Re-organisation Act.
4. A counter-affidavit has been filed by the Union of India stating that Krishna and Godavari Tribunal Awards have not put any restriction on the use of water under the specific projects and the States Reorganisation Act was given due cognizance by the Tribunals in their Awards and State Governments represented their cases for the utilisation of water in the pre and post projects. The Tribunals made final allocations after taking into account Section 108 of the Act. It is also stated that irrigation is a State subject as per List-11, entry 17 of the VII Schedule to the Constitution and that planning, execution and funding of the irrigation projects falls within the jurisdiction of the State Government, as per priorities fixed by the State Government and with respect to regional imbalances and oilier considerations. The Central Government appraises the major and Medium Irrigation projects for which project reports are prepared and submitted by State Government with respect to the techno-economic viability before the investment clearance including forest and environmental clearance is given by the Planning Commission.
5. A counter-affidavit has been filed on behalf of respondent No.7 sworn to by one Sri P. Venkata Ramana, Engineer-in-Chief (Admn.) I&CAD Department wherein, inter alia, it is stated that the reliefs prayed for by the petitioner as regards the Jurala and Bheema Projects, commencement of SLBC through tunnel work and to complete the balance works in Sriram Sagar Project Stage-I and to commence Stage-II cannot be granted as the same depends upon the policy decision taken by the Government having regard to the technical feasibility, financial viability and the larger public interest involved in those huge multipurpose projects. It is stated that the development of irrigation sector is constantly reviewed and the expenditure incurred, the irrigation potential created, the irrigation potential utilised, the sources of funding, the externally aided projects, the water rates etc., are all periodically reconsidered and every effort has been made to develop the backward areas in the State as a whole. It is further stated that the Government takes into consideration the development of entire State as a unit and not a particular region or area in isolation and denies the allegations made in regard to non-implementation of the projects in the area. The counter also refers to various projects which were taken up by the State after the formation of the State with statistical figures with reference to irrigated area, clearances given by the Central Water and Power Commission, projects where the work is in progress, projects to be undertaken in future, the economic feasibility of the projects, forest and environmental aspects. In view of the nature of the controversy involved, it is not necessary for us to go into the details of the same. It has further been pointed out that the subject-matter covered in the writ petition relate to inter-State rivers Godavari and Krishna which were the subject-matter of adjudication by Krishna Water Disputes Tribunal and Godavari Water Disputes Tribunal constituted under Inter State Water Disputes Act, 1956. It is also stated that the Government is striving hard to develop all the regions of the State and in all sectors for better and economical utilisation of available water resources by construction of number of Major, Medium and Minor Irrigation Projects in the State. As regards the commencement of SLBC project through tunnel scheme, it is stated that the Government had decided to take up the lift irrigation scheme to give early benefits.
6. It is not in dispute that rivers Godavari and Krishna are inter-State rivers. River Krishna raising in the Western Ghats near Mahabaleshwar in the State of Maharashtra flows through the States of Maharashtra, Karnataka and Andhra Pradesh gathering water on its way through tributaries like Bhima, Tungabhadra, Vedavathi, Ghataprabha etc. River Godavari raising in the Western Ghats near Triambakeswar in the State of Maharashtra gathers water on its way through its tributarises like Pravara, Purna, Manjira, Penganga, Wardha, Pranahita, Indravathi, Sabari etc., covering the State of Maharashtra, Karnataka, Madhya Pradesh, Orissa and Andhra Pradesh.
7. Entry 56 of List-I of the Seventh Schedule to the Constitution of India confers power upon the Parliament to make legislation in relation to Regulation of Inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. Under Entry 17 of List-II, the Legislature of a State has exclusive power over water, that is to say, water supplies irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List-I.
8. Article 262 which deals with adjudication of disputes relating to waters of inter-State rivers or river valleys reads as follows:
"262. Adjudication of disputes relating to waters of inter-State rivers or river valleys :--(1) Parliament may by law provide for the adjudication of any dispute of complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1)."
9. The Parliament in exercise of the power under Article 262, Parliament enacted Inter-State Water Disputes Act, 1956 (for short, 'the Act'). Section 3 of the said Act enables a State Government to make a complaint as to water disputes. The State Government may in such form and manner as may be prescribed, request the Centra! Government to refer the dispute to a Tribunal for adjudication. Under Sections 4 and 5(1) of the Act, the Central Government is empowered to constitute a Water Disputes Tribunal and to refer the dispute to it for adjudication if the Central Government is of the opinion that the water dispute cannot be settled by negotiations. Section 5(2) provides that the Tribunal shall investigate the matters referred to it and forward to the Central Government a report selling out the facts as found by it and giving its decision on the matters referred to it. Under Section 6 of the Act, the Central Government shall publish the decision of the Tribunal in the official Gazette and the decision shall be final and binding on the parties to the dispute and shall be given effect to by them. Section 11 provides that "notwithstanding anything contained in any other law, neither the Supreme Court nor any other Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under this Act",
10. It is not in dispute that Krishna and Godavari Water Disputes Tribunals were constituted on 10-4-1969 and the Tribunals investigated the matters and prepared reports. The report relating to Krishna Water Disputes Tribunal was submitted to the Government of India on 24-12-1973 and a further report was submitted on 29-5-1976. The final order was published in Gazette on 31-5-1976. The report relating to Godavari Water Disputes Tribunal was submitted to Central Government on 27-11-1979 and a further report was made on 7-7-1980 and the final order was published in the Gazette on 26-7-1980.
11. Under Section 11 of the Act read with Article 262(2) of the Constitution of India, the jurisdiction of the Court is very limited. The submission of Sri Satyam Reddy learned Counsel appearing for the petitioner is that having regard to the agreements entered into by the State at the time of formation of the State of Andhra Pradesh, the same have to be given effect to and the promises made therein must be considered having regard to the power of the State.
12. A developmental programme taken up by a State has to be considered having regard to its policy decision in relation to the entire State. The Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot enter into the merits of such policy decision far less the desirability thereof. The correctness or otherwise of a policy decision of the State is not justiciable. What may be justiciable is the legality or the validity thereof on the touch stone of the constitutional provisions. In Centre for Public Interest Litigation v. Union of India, , wherein a policy decision of the Government of India to offer some of its discovered oil fields for development on a joint venture basis to some private firms was under challenge, the Supreme Court observed:
"..... That apart, whether the oil wells should be developed on a stand alone basis by the ONGC or not, is a matter of policy with which we are not inclined to interfere solely on the ground that there is no reference to such study in the decision of the GOI."
13. We may also notice that the question as regards the agreements entered into and the promises made by the State at the time of formation of the State and other matters had been raised by the petitioner only in the reply filed on 21-2-2001 and not in the main writ petition which is impermissible.
The submission of the learned Counsel to the effect that having regard to the provisions contained in Article 371-D of the Constitution of India, the State must implement the purport and object thereof is stated to be rejected. Article 371-D was inserted in the Constitution of India for providing equitable opportunities and facilities for the people belonging to different parts of the State in the matter of public employment and in the matter of education. The reasons and the purpose of inserting the provisions of Article 371-D in the Constitution as regards providing of equal opportunities and education to the people belonging to the different parts of the State, cannot, in our considered opinion, be equated to any other matters covered by the policy decision of the State particularly having regard to the fact that the State is bound to consider its developmental activities in areas such as irrigation having regard to the inter-State agreements on river waters and awards of the Water Tribunals. In any event, Article 371-D of the Constitution of India is only an enabling provision. In this connection, reference may be made to the decision of the Apex Court in Chief Justice, Andhra Pradesh v. LVA Dikshitulu, , wherein it was held:
"69. With these prefatory remarks, we may now notice the Statement of Objects and Reasons for the Bill which became the Constitution (32nd Amendment) Act, 1972. The statement may be quoted in extenso:
"When the State of Andhra Pradesh was formed in 1956, certain safeguards were envisaged for the Telangana area in the matter of development and also in the matter of employment opportunities and educational facilities for the residents of that area. The provisions of Clause (1) of Article 371 of the Constitution were intended to give effect to certain features of these safeguards. The Public Employment (Requirement as to Residence) Act, 1957, was enacted inter alia to provide for employment opportunities for residents of Telangana area. But in 1969 (in the case, A.V.S. Narasimha Rao v. State of Andhra Pradesh, , the Supreme Court held the relevant provision of the Act to be unconstitutional insofar as it related to the safeguards envisaged for the Telangana area. Owing to a variety of causes, the working of the safeguards gave rise to a certain amount of dissatisfaction sometimes in the Telengana area and sometimes in the other areas of the State. Measures were devised from time to time to resolve the problems. Recently several leaders of Andhra Pradesh made a concerted offer to analyse the factors which have been giving rise to the dissatisfaction and find enduring answers to the problems with a view to achieving fuller emotional integration of the people of Andhra Pradesh. On the 21st September, 1973, they suggested certain measures (generally) known as the Six Point Formula) indicating a uniform approach for promoting accelerated development of the backward areas of the State so as to secure the balanced development of the State as a whole and for providing equitable opportunities to different areas of the State in the matter of education, employment and career prospects in public services. This formula has received wide support in Andhra Pradesh and has been endorsed by the State Government.
2. This Bill has been brought forward to provide the necessary constitutional authority for giving effect to the Six Point Formula insofar as it relates to the provision of equitable opportunities for people of different areas of the State in the matter of admission to educational institutions, and public employment and constitution of an Administrative Tribunal with jurisdiction to deal with certain disputes and grievances relating to public services. The Bill also seeks to empower Parliament to legislate for establishment of a Central University to the State and contains provisions of an incidental and consequential nature including the provisions for the validation of certain appointments made in the past. As the Six-Point Formula provides for the discontinuance of the Regional Committee constituted under clause (1) of Article 371 of the Constitution, the Bill also provides for the repeal of that clause".
14. The learned Counsel appearing for the petitioner has drawn our attention to the statement of objects and reasons which became the Constitution (32nd Amendment) Act, 1972 and the observations of the Apex Court at paragraph 70 of the above judgment which are to the following effect:
"70. It will be seen from the above extract that the primary purpose of enacting Article 371-D was twofold: (i) To promote accelerated development of the backward areas of the State of Andhra so as to secure the balanced development of the State as a whole, and (ii) to provide" equitable opportunities to different areas of the State in the matter of education, employment and career prospects to public service".
As already noticed hereinbefore, Article 371-D was enacted for providing equitable opportunities and facilities for the people belonging to different parts of the State in matters of public employment and education. The issue involved in Dikshitulu's case is whether the State Administrative Tribunal has jurisdiction to entertain, deal with or decide the representation made by a member of the Staff of the High Court or of the Subordinate Judiciary. The Apex Court held that the said provisions have no application in relation to the officers and servants of the High Court and the members of the Judicial Service and the same cannot take away the administrative or judicial jurisdiction of the Chief Justice or of the High Court under Articles 229, 235 and 226 of the Constitution of India in regard to those public servants in matters or disputes falling within the scope thereof. It was held that nothing in the order of the President constituting the Administrative Tribunal, confers jurisdiction on the Tribunal to entertain, deal with or decide the representation by a member of the staff of the High Court or of the subordinate judiciary. It is thus not for the Court to direct the State Government to implement its policy decision in one or the other matters.
15. So far as the allocation of water is concerned, normally, the Courts are not inclined to interfere in such matters unless the grievance raised in the writ application is such that it attracts the wrath of Article 14 of the Constitution of India. The power of the Court to make a judicial review of such administrative action of the State is very limited. It is now well settled law that right to water itself is a penumbral right as contained in Article 21 of the Constitution of India. But, no such right exists in relation to flowing water (See Pennar Delia Ayacutdars Association v. Government of Andhra Pradesh, ). The Central Government in general and the States in particular will consider the priorities of the regions having regard to the overall situation prevailing in that region and for that purpose certain minor sacrifices may be required to be made by the people. Reference may also be made to the decision of the Supreme Court in Tamil Nadu N.V.V.N.U. P. Sangam v. Union of India, , wherein it was held that the Court including Supreme Court will have no jurisdiction to enter upon factual aspects of dispute.
16. It is relevant to note that in the counter-affidavit, it has been stated at para 49 as follows:
"The Government of Andhra Pradesh is striving hard to develop all the regions of the State and in all sectors for better and economical utilization of available water resources by construction of number of Major, Medium and Minor Irrigation Projects in the State. It is submitted that the major irrigation and multi-purpose projects under execution in the State of Andhra Pradesh are:
"1. Priyadarshini Jurala Project 2. Sri Rama Sagar Project
3. Kalyanivagu
4. Singitam
5. Srisailam Left Bank Canal (A. Madava Reddy Canal Project)
6. Sangambanda Balancing Reservior (part of Bheema Left Irrigation Scheme)
7. Singur
8. Sri Rama Sagar Project Stage-II
9. Telugu Ganga Project
10. Modernisation of K..C. Canal
11. Modernisation of Tungabhadra High Level Canal
12. Srisailam Right Bank Canal Project
13. Vamsadhara Project
14. Gannavaram Aqueduct
15. Yeleru Reservior Project
16. Chagalnadu Lift Irrigation Scheme".
17. As regards the power of this Court in deciding such matters by way of Public Interest Litigation, the same has been considered by a Division Bench of this Court in V. Srihari v. State of A.P., Food and Agriculture, Civil Supplies, (DB), wherein it was held thus:
"3. It is now a well settled principle of law that the Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India will not normally interfere with a policy decision, particularly, affecting the fiscal measures adopted by the State. The question at what price the essential commodities should be supplied to the citizens of India and what class of citizens of India would be entitled thereto, is entirely a matter for the Executive to decide and not for the Court. Such a policy decision, particularly, when the same has been adopted by the State, unless held to be arbitrary, cannot be interfered with. There cannot be any dispute that, having regard to the interpretation by the Apex Court on Article 21 of the Constitution of India, life would not only include mere animal existence but also other things affecting the life as has been explained by the Apex Court in a recent decision reported in Dr. Ashok v. Union of India wherein the decision referred to by the learned Counsel viz., Francis Coralie (AIR 1981 SC 746) and Bandhu Mukti Morcha , had been noticed.
4. It is also well settled that every policy decision cannot be allowed to be questioned in a proceeding under Article 226 of the Constitution of India. The decision of the Apex Court reported in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress has been taken note of by the Apex Court in Ashok Kumar Gupta v. State of U.P. , wherein the Apex Court has held that the policy decision adopted by the State should not normally be interfered with. In M.P. Oil Extraction v. State of M.P. , the Apex Court has clearly held that the State's policy decision to extend the protection to a class of persons or for a particular period is unless patently arbitrary, no interference therewith is called for at the hands of the Court".
18. In the light of the above, we are of the opinion that, this Court, in exercise of the jurisdiction under Article 226 of the Constitution of India, cannot interfere with the policy decisions taken by the State from time to time in discharge of it's executive function in relation to irrigation management system and water resources management in the State. It cannot be said that in a democratic form of Government, the State which is supposed to develop the entire State as a unit, will neglect any particular region or part of the State. As already noticed hereinbefore, out of 16 projects which were under execution in the State, eight projects were located in Telengana area. The State in its endeavour to develop the State as a unit wilt take into account various aspects viz., technical feasibility of the project, financial viability, priorities involved, inter-State agreements, awards of the Tribunals etc. Before any policy decision is taken by the State, it gathers information and material from various sources including the administrators assigned with duty to manage the irrigation system. The wisdom of the State in such policy matters cannot be interfered with by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India.
19. For the reasons aforementioned, we are of the considered opinion that the reliefs sought for the petitioner cannot be granted. The writ petition is accordingly dismissed. No order as to costs.